Is the margin of appreciation something that domestic courts should be applying?

I am working on some online updates for my Administrative Law book at present. In the course of doing so, I came across R (S) v Secretary of State for Justice [2012] EWHC 1810 (Admin) – in which Sales J has some interesting (but debatable) things to say about the margin of appreciation doctrine.

The case centred upon s 1(3) of the Prisoners’ Earnings Act 1996 and Rule 31A of the Prison Rules. The combined effect of those provisions was to enable prison governors to impose a levy of up to 40 per cent on prisoners’ earnings deriving from work undertaken outside the prison, where those earnings exceeded a prescribed amount. The money raised was given to Victim Support. Prison Service Instructions issued to governors acknowledged that they had discretion whether to impose a levy, but said that the Government expected levies to be imposed in the absence of exceptional circumstances. The Instructions set out what the Government considered to be exceptional circumstances for this purpose.

In the present case, it was argued that the Instructions were unlawful because they required governors to, or contemplated that they would, act in a way that would breach Article 1, Protocol 1 of the ECHR. Sales J held (at [45]) that ‘the imposition of a special tax upon prisoners in receipt of enhanced earnings for the purposes of securing hypothecated funding to support the victims of crime in the present case falls well within the national authorities’ margin of appreciation, in line with these authorities’. He went on (at [47]):

[I]n light of the wide margin of appreciation which is applicable, I consider that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised and that a fair balance is struck between the general interests of the community and the requirements of the protection of the individual prisoners’ fundamental rights, such that prisoners subject to deductions from their enhanced earnings do not bear an individual and excessive burden …

However, Sales J explained (at [48]) that:

The Claimants sought to meet these powerful points in favour of the Secretary of State by submitting that he is not entitled in these domestic proceedings to take the benefit of the margin of appreciation which would be afforded by the ECtHR to the United Kingdom as an ECHR Contracting State in proceedings in Strasbourg. They relied on the decision of the House of Lords in In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173 for the submission that the Court should itself make its own judgment and decide what guidance should be given to prison governors regarding the exercise of their discretion, without deferring to the judgment of the Secretary of State as expressed in the guidance in the Prison Service Instructions.

Sales J rejected that argument. He observed that the ‘Convention rights’ to which the Human Rights Act 1998 gives effect in UK law are (according to s 1(1) of that Act) the rights contained in the Convention ‘as it has effect for the time being in relation to the United Kingdom’. And, Sales J observed (at [53]), ‘That effect is determined, in part, by operation of the margin of appreciation applied by the ECtHR in determining whether there has been any violation of Convention rights.’ It followed, he said (at [56]), that:

The ambit of the Convention rights is directly governed by the concept of the margin of appreciation as it falls to be applied under the ECtHR’s case law. Where the ECtHR applies the margin of appreciation so as to conclude that a state has not violated a Convention right when it acts in a particular way, the necessary corollary is that the Convention rights of the individual applicant did not extend to a right to require the state to refrain from acting in that way. Contrary to the submission of the Claimants, I do not think it is easy to separate out the content of the rights from the application of the margin of appreciation.

In the course of arriving at this view, Sales J quoted from the judgment of Laws LJ in SRM Global Fund LLP v Commissioners of HM Treasury [2009] EWCA 788 at [59]:

It is to be noted that the rationale of the margin of appreciation is not limited to the relative disadvantage suffered by an international court in the task of evaluating local needs and conditions. It has a close affinity with a municipal doctrine: the margin of discretion, or deference (now a less favoured expression), which our courts will pay to the judgment of public decision-makers in matters of discretion or policy. In Kebilene, after describing the margin of appreciation, Lord Hope referred to “an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention”. This “margin of discretion” is given on democratic grounds; it respects the elected arms of government. But this is also an element, and an important one, in the margin of appreciation. I have already cited paragraph 46 of [James v United Kingdom (1986) 8 EHRR 123]. A careful reading of that text discloses two dimensions of the margin’s justification. The first, to be sure, is the international court’s relative disadvantage. But interwoven with this is the democratic imperative.

But are Sales J and Laws LJ really on the same page as one another? Laws LJ argues that there is a relationship between the transnational margin of appreciation doctrine and the domestic doctrine of margin of discretion or deference—but he does not go so far as to suggest that they are the same as one another, not least because one of the reasons for the former (viz the ‘relative disadvantage suffered by the international court’) has no application to a domestic court. Sales J, on the other hand, suggests that the margin of appreciation, in its entirety, is hard-wired into the the ‘Convention rights’, such that a domestic court applying those rights would have no choice but to give Parliament or the Executive the full benefit of the margin of appreciation, notwithstanding that one of the considerations underpinning it does not directly apply to domestic courts.

I understand the logic of Sales J’s argument, but I am not certain that I am convinced that it leads him to the right conclusion. I suspect, however, that his view concerning the margin of appreciation (and its applicability by domestic courts) is closely tied in with his more general approach to the relationship between the Convention as it is applied by domestic courts and the Convention as it is applied by the Strasbourg Court – on which see his recent paper, ‘Strasbourg jurisprudence and the Human Rights Act: a response to Lord Irvine’ [2012] Public Law 253. For further discussion of the so-called ‘mirror principle’ (which Sales defends in his Public Law article), see Roger Masterman’s recent post on the UK Constitutional Law Blog.

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